Appellate courts in Maryland and Michigan reached opposing conclusions in decisions announced on July 7 about whether a biological mother’s lesbian partner can seek visitation with the child they were raising together before their relationship broke up.
In Maryland, the state’s highest court, the Court of Appeals, ruled in Conover v. Conover that a person who qualified as a “de facto” parent can be granted visitation rights if a trial court determines that is in the best interest of the child.
In Michigan, however, the state’s intermediate appellate court, the Court of Appeals, ruled in Lake v. Putnam that a former partner is merely an unrelated “third party” who can only seek visitation if she can show that the child’s legal parent is “unfit” or that there are “exceptional circumstances” that would justify ordering visitation. The fact that the women had a child by agreement and were raising the child together is not deemed an “exceptional circumstance” for this purpose. The Michigan ruling could be appealed to the state’s Supreme Court.
The rights of a non-biological mother in claiming visitation, custody still in dispute
In the Maryland case, the court, in making its decision, overturned a 2008 ruling in Janice M. v. Margaret K., which it concluded was based on a faulty reading of the US Supreme Court’s 2000 decision in Troxel v. Granville that overturned a Washington State court order requiring a widow to allow her ex-husband’s parents to have visitation with her child. The Maryland court came around to the view that Troxel was a narrow ruling that should not be applied to a case where the plaintiff actually had a bonded parental relationship with the child, unlike the grandparents in Troxel.
Judge Sally D. Adkins characterized the Janice M. ruling as an “archaic precedent” that was out of step with the trend in other states, as it improperly placed a technical barrier in the way of making a decision that was in the best interest of the child, the ultimate goal in any case involving minors.
Michelle and Brittany Conover’s relationship began in 2002, and they later decided together that Brittany would conceive a child with anonymous donor sperm obtained through a fertility clinic. She gave birth to their son in April 2010, but the birth certificate, consistent with Maryland law at the time, listed only one parent, Brittany. The space for a father was left blank. When their son was about six months old, they married in the District of Columbia, which was recognized by Maryland even though that state was not yet issuing licenses to same-sex couples. The women separated a year later, in 2011.
Until July 2012, Brittany allowed Michelle overnight and weekend access to their son, but she then she prevented further contact. In February 2013, Brittany filed a divorce action, and her complaint stated that there were no children of the marriage. Michelle filed an answer to Brittany’s action, seeking visitation rights with their son. Brittany opposed the visitation claim, arguing that Michelle was not legally related to the boy and thus lacked standing under Maryland law. Since the child was born before they married, there was no presumption as a matter of law that Michelle was the mother.
The trial and intermediate appellate courts, bound by the Janice M. precedent, ruled that Michelle did not have standing to seek visitation. The Court of Appeals accepted Michelle’s argument that it should rethink the issue and, rejecting its prior interpretation of Troxel, decided to follow an emerging trend begun by the Wisconsin Supreme Court in 1995. Recognizing the reality of lesbian couples using donor insemination to start families, the Wisconsin court decided that in such situations the “non-biological” mother should be considered a “de facto” parent with standing to seek custody and/ or visitation after a breakup if the legal parent had fostered the relationship between the co-mother and the child, that woman had lived with the child and acted as a parent to a significant degree, and the co-mother and the child had forged “a parent-child bond.”
The Maryland court concluded that this approach respected the biological mother’s constitutional right to custody and control of her child, while also recognizing the reality of a parent-child relationship between the legal parent’s same-sex partner and the child and the psychological harm a child might suffer due to separation from a parental figure.
Though three judges wrote concurrences tinkering with Judge Adkins’ application of the Wisconsin ruling under Maryland law, all seven members of the court agreed that Michelle Conover is entitled to a new trial court hearing to determine whether she qualifies as a “de facto” parent and, if so, whether it is in the child’s best interest to re-establish contact with her, taking into account the years that have passed while this case has been pending.
In a footnote, the court mentioned that Michelle now identifies as a man, but says nothing about how that might factor into the “best interest” analysis to determine visitation. A press release about the case by the Maryland public interest organization that represents Michelle says his name is now Michael, but the court footnote said he decided to use his former name and female pronouns for consistency in the court records.
Michigan courts do not recognize the concept of a “de facto” parent, and the plaintiff in Lake v. Putnam sought to rely on a different legal doctrine recognized in Michigan: equitable parent. However, the court found the doctrine inapplicable, reversing a trial court ruling.
Michelle Lake and Kerri Putnam lived together for more than a decade as a same-sex couple. About five years into their relationship, Putnam bore a child by donor insemination and both women acted as parents to the child and were both viewed as parents by the child. Putnam ended her relationship with Lake in September 2014, several years after the child was born, and moved out with the child and began a new relationship. At first, Putnam allowed Lake to visit the child, but eventually she cut off contact and Lake filed a lawsuit seeking visitation rights. The trial judge rejected Putnam’s argument that Lake lacked standing to seek visitation, and ordered Putnam to allow Lake visiting time with the child.
The Court of Appeals granted Putnam’s petition to appeal and reversed.
In her opinion for the court, Judge Colleen A. O’Brien pointed out that the women could have married in another jurisdiction before the child was born, but they had not done so. Although Michigan did not then allow “second-parent” adoptions, the women did live together with their child in Florida for a period of time, and such an adoption could have been undertaken in that state but was not.
Interestingly, a separate lawsuit challenging Michigan’s refusal to allow second-parent adoptions ultimately was transformed into a challenge of that state’s ban on same-sex marriages, and was one of the consolidated cases decided by the US Supreme Court last year under the title Obergefell v. Hodges, where the court found a right to same-sex marriage.
The state Court of Appeals rejected the argument that Obergefell should be applied retroactively to this relationship, noting that Lake had not presented any evidence that the women would have married before the child was born if they could have done so. Judge O’Brien’s opinion did not, however, suggest that if Lake had presented such evidence the case would have come out differently.
The court found that the equitable parent doctrine was limited to cases in which a husband sought to establish parental rights to a child born to his wife but conceived with somebody else’s sperm. The court refused to extend the doctrine, which is embodied in a statute that specifically references husbands, to fit the circumstances of a same-sex couple. The court also declined Lake’s suggestion that it should follow precedents from other states that have allowed same-sex partners to sue under these circumstances.
Although all three judges on the Court of Appeals panel agreed that the trial court’s order must be reversed, Judge Douglas Shapiro asserted in a concurring opinion that the case could have turned out differently had Lake presented some evidence that the women would have married before their child was born had the states where they resided allowed it at the time. He pointed out that last year the Court of Appeals had ruled in favor of parental standing in a similar case where a same-sex couple had actually married out-of-state before having their child, using the reasoning of Obergefell to confer, in effect, retroactive recognition of the marriage.
“I would not limit our application of Obergefell to cases where the parties actually married in another jurisdiction,” he wrote. “The fact that marriage was available in some other jurisdictions did not remove the unconstitutional burden faced by same-sex couples residing in a state that barred same-sex marriage within its borders. The impediment was defined by state law, and the existence of that law to those who lived under it should not now be treated as constitutionally insignificant because other states treated the issue differently.”
The Obergefell decision is increasingly being cited by courts to support parental claims by women whose same-sex spouse bears a child during their marriage, approving a gender-neutral interpretation of the traditional presumption that the husband of a woman who bears a child is the parent of the child. This presumption does not necessarily apply to situations where the parties marry shortly after the child was born, although New York law allows a husband to assert parental rights in such a situation if he does so promptly after the marriage.
The New York Court of Appeals heard oral arguments early in June in two cases presenting the same issue that the Maryland and Michigan courts were addressing. A quarter-century ago, the New York court ruled in Alison D. v. Virginia M. that a same-sex partner was a “legal stranger” to the child born to her former partner and thus lacked standing to seek custody or visitation. The Maryland court described this position as “archaic” in the Conover case, and hopes are high that the New York court will reach the same conclusion and overrule its old precedent. Comments by some of the judges during the oral argument suggested that this might happen. The court will not rule until at least late August, and more likely not before September.